Research On The Improvement Of Constitution Amendment Of Limited Liability Company

In limited liability company, shareholders usually have close relations with each other, the share-transfer is difficult. Corporate constitution as the foundation of shareholders'legitimate expectation, bearing the expectation of shareholders'investment. Because of these reasons, the amendment of corporate constitution is an important event, which has effects on every shareholder; many countries and district provide strict rules of constitution amendment, including procedural rules and the relief channels of dissenting shareholders. The Company Law of PRC enhanced the principle of corporate autonomy, expanded company's rights of autonomy, but didn't provide all-round and systematic legal system at the same time. The legislation is too simplified; courts hesitate to make full use of the principle of"Prohibition of abuse of rights."in jurisdiction. By researching the fundamental theories of constitution amendment, comparing the procedural and substantive rules of major countries, analyzing different rules of other countries and districts, this thesis aims to improve Chinese legislation for our lack of legal provisions. Drawing on the experience of foreign legislative and judicial basis, from the formulation of legislation and judicial rules of procedure, give out suggestions for improvement. I think: the procedural rules of our constitution amendment should cooperate with other rules, especially withdraw from voting,all shareholders agreement, revocation of unfair amendment resolution,appraisal right of dissenting shareholder. We should balance the relations between majority rule and legitimate expectation of shareholders; at the same time, strengthen the role of"Prohibition of abuse of rights."in constitution amendment, enhance its applicability in the justification.This thesis is divided into three parts: introduction, main body and conclusion.In the introduction, I describe the reasons for the selected topic, research methods and ideas, make a brief review of the existing research results, bring up the priorities and importance of this thesis.The main body includes four parts:Chapter 1 is the theoretical foundation of this thesis, which focuses on the basic theories of constitution amendment. From the point of closely held characteristic of limited liability company, the nature of corporate constitution and the way of amendment, making clear the importance and necessity of amendment for maintaining harmony among shareholders and the maintenance of company business.Chapter 2 analyzes the procedural rules of constitution amendment. By comparing analysis and theoretical research, I summary the common points, prominent different points, research the rules about withdraw from voting,class voting,appraisal right of dissenting shareholder and revocation of unfair amendment. Point out the shortcomings and the direction to improve Chinese present law.Chapter 3 researches the substantial rules of constitution amendment. First of all, study the principles of"Bona fide for the benefit of the company as a whole"and"unjust prejudice"in constitution amendment, the former principle was summarized from cases, the latter was provided by legislature. Through analyzing classical cases, I find out some substantial rules of constitution amendment. Then outlining the legislation of civil law countries; rejecting"fiduciary duty"as the substantial rule of constitution amendment. At last, from the standpoints of Chinese legislature and jurisdiction, analyzing and advocating the principle of"Prohibition of abuse of rights."as the substantive rule, which should be made better used in jurisdiction. Chapter 4 is the core part of this thesis, on the basis of the above, from the aspects of withdraw from voting,all shareholders agreement rule,revocation of unfair amendment and declaration of void amendment,appraisal right of dissenting shareholder, I propose some improving advices, provide a number of specific criteria for the application of these rules and for the judge of the court. Advocating the idea that takes the principle of"Prohibition of abuse of rights"as the important substantive rule in jurisdiction; at last, I advise shareholders make good use of shareholder agreement, which could avoid and relieve the unexpected constitution amendment.Conclusion summaries all of the above, this thesis holds the point that in the field of constitution amendment of limited liability company, China should establish and improve the rules in the legislation system, at the same time properly expand the courts'discretion, pay more attention to the principle of"Prohibition of abuse of rights", so as to harmonize shareholders'relations and improve corporate governance.